Northeast Land Dev. Corp. v Bertoli

[*1] Northeast Land Dev. Corp. v Bertoli 2013 NY Slip Op 52312(U) Decided on January 2, 2013 Supreme Court, Nassau County DeStefano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 17, 2014; it will not be published in the printed Official Reports.

Decided on January 2, 2013
Supreme Court, Nassau County

Northeast Land Development Corporation, Petitioner,

against

Tullio Bertoli, COMMISSIONER OF THE DEPARTMENT OF PLANNING, ENVIRONMENT AND LAND MANAGEMENT OF THE TOWN OF BROOKHAVEN; THE TOWN OF BROOKHAVEN; THE HAMLET AT WILLOW CREEK DEVELOPMENT CO., LLC; MT. SINAI ASSOCIATES, LLC and THE HOLIDAY ORGANIZATION, Respondents.



004140-13



Attorney for Plaintiff:

Kaplan & Levenson, P.C.

Steven Kaplan, Esq.

630 Third Avenue

New York, NY 10017

(212)983-6900

Attorney for Defendant (Bertolli, Town of Brookhaven):

Twoney Lafham Shea Kelly

Reza Ebrahimi, Esq.

33 West Second Street

Riverhead, NY 11901

(631)727-2180

Attorney for Defendant (Hamlet of Willow Creek, Holiday Organization, Mt sinai Associates):

Rosenberg Calica Birney, LLP

100 Garden City Plaza

Garden City, NY 11530

(516)7477400

Vito M. DeStefano, J.

The following papers and the attachments and exhibits thereto have been read on this motion:

Notice of Petition1

Memorandum of Law in Opposition2

Reply Affirmation3

Notice of Motion4

Affirmation in Opposition5

Reply Affirmation6

Notice of Cross Motion7

Reply Memorandum of Law8

Notice of Motion9

Memorandum of Law in Support10

Affirmation in Opposition11

Memorandum of Law in Opposition12

Reply Affirmation13

Petitioner, Northeast Land Development Corporation moves for an order and judgment pursuant to CPLR Article 78 compelling Respondents, Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven and the Town of Brookhaven, "to make a final determination' as to the amount of material that was removed" from The Hamlet at Willow Creek, the amount of environmental fund fees due pursuant to Brookhaven Town Code §§ 53-3 and to issue a written report thereon (Motion Sequence No 1).

Respondents Tullio Bertoli, Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven and the Town of Brookhaven move for an order, inter alia, pursuant to CPLR 510 and 511 to change venue of the instant proceeding from Nassau County to Suffolk County and also move, by separate motion, for an order pursuant to CPLR 3211(a)(5), (7), and 7804(f) dismissing the Petition (Motion Sequence Nos 2 and 4).

Respondents, The Hamlet at Willow Creek Development Co., LLC, Mt. Sinai Associates, LLC and The Holiday Organization cross-move for an order pursuant to CPLR 7804(f) and CPLR 3212 dismissing the Petition (Motion Sequence No 3). [*2]

For the reasons that follow, the motion to change venue is granted and the instant proceeding and remaining motions shall be transferred to the Supreme Court of Suffolk County.

Factual Background

The Hamlet at Willow Creek Development Co., LLC ("Hamlet") is the owner and developer of "The Hamlet at Willow Creek", a development consisting of 177 homes and an 18-hole golf course located in Mt. Sinai, in the Town of Brookhaven, New York (the "Site"). The Hamlet was required to remove a substantial amount of fill dirt to prepare for the construction of the homes and the golf course and was required to pay certain fees for every cubic yard of material removed from the Site. The environmental fund fees were payable to the Town's Environmental Fund, delineated as the Joseph Macchia Environmental Capital Reserve Fund ("Macchia Fund"). Respondent Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven ("Commissioner") was responsible for making the "final determination of the amount of material subject to fees" and such fees became due upon the final conditional approval of each subdivision section or site plan (Ex. "A" to Motion Seq No 2 at ¶¶ 7-10).

Petitioner Northeast Land Development Corporation ("Northeast") was hired to excavate the Site and, pursuant to a written agreement, was required to remove no more than 1.65 million cubic yards of fill material (Ex. "A" to Motion Seq No 2 at ¶¶ 7-8).[FN1]

On August 6, 2004, the Town of Brookhaven ("Town") notified the Hamlet that it was believed that the Site had been over-excavated in excess of the authorized amount. The Town also requested the payment of the environmental fees due, on the approved excavation amount and on the over-excavated amount. The Town thereafter issued a "Stop Work Order" which terminated construction and stopped the processing of applications for certificates of occupancy for the completed homes within the Hamlet development.

Procedural History

In September of 2004, the Hamlet commenced an Article 78 proceeding against the Town of Brookhaven, The Department of Planning, Environmental and Development of the Town of Brookhaven, and Daniel Gulizion, as Commissioner of the Department of Planning, Environmental and Development of the Town of Brookhaven in Suffolk County to compel the [*3]issuance of certain certificates of occupancy.[FN2] In December 2008, the Hamlet and the Town entered into a stipulation which facilitated the "Stop Work Order" being lifted and the Hamlet agreeing to pay a total of $1,040,000 for environmental fees to the Town ("Stipulation").[FN3] Purportedly, in connection with the negotiations and execution of the Stipulation, the Hamlet and the Town used three-year old elevations of the site from a 1999 aerial survey which were "materially higher than the true elevations of the Site in 2002 when Northeast began excavation" (Ex. "A" to Motion Seq No 2 at ¶ 16). According to the Petition, "[n]o final determination' was ever made by the Commissioner as to how much material was actually excavated from the Site, or in turn, the proper amount of Environmental Fund Fees which were actually due under the Macchia law" (Ex. "A" to Motion Seq No 2 at ¶ 14) (emphasis in original).[FN4]

In 2005, the Hamlet filed a separate action in Nassau County against Northeast, its surety Fidelity and Pav-Co, another contractor, to recover fees paid to the Town for excavation and also any additional fees or penalties for over-excavation.[FN5] A judgment was subsequently entered in favor of the Hamlet and against Northeast, Pav-Co and Fidelity for the amount of environmental fund fees agreed upon by the Town and the Hamlet and paid by the Hamlet in the Stipulation.

On appeal, the Second Department affirmed the judgment, subject to an adjustment upwards or downwards, based upon the Commission's findings once a determination was made as to the ultimate amount of soil removed (The Hamlet at Willow Creek Development Co., LLC v Northeast Land Development Corp., et al., 64 AD3d 85, 112-116 [2d Dept 2009]). Specifically, the Court held as follows:

The record does not reflect, however, that the Commissioner of the Town of Brookhaven Department of Planning, Environment and Development (hereinafter the Commissioner), who is the responsible official under the Town's Environmental Fund law, made any final determination with respect to the amount of Environmental Fund fees that will ultimately be due with respect to the excavation at issue here. As a result, Northeast's obligation may be greater than the amounts that the Hamlet has already paid. Thus, the Hamlet failed to establish its entitlement to judgment as a matter of law on its first cause of action with respect to Environmental Fund fees and engineering costs in excess of the $1,040,000 it already paid. Its claim in that regard must therefore be severed and summary [*4]judgment denied. Moreover, in the event the Commissioner determines that the fees and costs required by the Town are less than the amount already paid by the Hamlet, Northeast will be entitled to correction of the judgment (see CPLR 5019) (Id. at 101-02).

After further discovery on this issue for the purpose of calculating damages only, the Hamlet moved, inter alia, for summary judgment on the claim against Northeast and Pav-Co, to recover damages for the conversion of 373,008 cubic yards of fill mate, claiming that the prior settlement agreement between the Town and the Hamlet (in the Suffolk County Article 78 proceeding) conclusively established the amount of extra soil excavated from the site. The Supreme Court, among other things, granted summary judgment finding that the Town and the Hamlet Stipulation constituted a determination of how much soil was over-excavated. In reversing the trial court, the Second Department held:

Contrary to the Supreme Court's determination, the plaintiffs failed to meet their prima facie burden of demonstrating that the project was over-excavated by 373,008 cubic yards of fill material. Under the circumstances of this case, the plaintiffs, as the proponents of summary judgment, bore the burden of demonstrating, in the first instance, that the project was over-excavated by 373,008 cubic yards of fill material by tendering evidence of the topography of subject property in 2002, when the subject excavation work was both commenced and completed by Northeast and Pav-Co. However, the plaintiffs failed to meet this burden (Hamlet at Willow Creek Development Co., LLC v Northeast Land Development Corp., 99 AD3d 661, 665 [2d Dept 2012] [citations omitted]).

Thereafter, by letter dated December 6, 2012, Northeast requested that the Commissioner make a final determination as to the amount of material subject to the environmental fund fees (Ex. "C" to Cross Motion [Motion Seq No 3]). In response, by letter dated December 13, 2012, the Town indicated that it had "previously made just such a Final Calculation'" in the Stipulation (Ex. "N" to Cross Motion [Motion Seq No 3]).

The Instant Proceeding

On April 5, 2013, Northeast commenced the instant Article 78 proceeding seeking an order directing the Commissioner and the Town (the "Town Respondents") to "make a final determination' as to the amount of material that was removed from the Site that was subject to the Environmental Fund Fees under the Macchia Law, and to issue a written report thereof."

According to the Petition, venue is "proper in Nassau County in accordance with CPLR §§ 7804(b) and 506(b). Respondent and the Site are both located in the Tenth Judicial District and its where Respondent refused to perform the duty enjoined upon him by law. Furthermore, . . . the related Developer Litigation . . . is still pending in the Supreme Court of the State of New York, Nassau County, and involves issues that are inextricably intertwined with the issues herein" (Ex. "A" to Motion at ¶ 6 [Motion Seq No 2]). [*5]

After the petition was filed, the parties made the instant motions,[FN6] one of which includes a request by the Town Respondents for an order pursuant to CPLR 510 and 511 to change the place of trial in this action from Nassau County to Suffolk County, upon the ground that the County of Nassau is not the proper county.

The Court's Determination

Change of Venue (Motion Sequence No 2)

In seeking a change in venue pursuant to CPLR 510 and 511 [FN7], the Town Respondents argue that:

Town Law § 66 is mandatory that actions against towns or their officers must be in the county in which the town is situated by virtue of the use of the language shall be in the county in which the town is situated'. To the extent that there may be any conflict with the provisions of CPLR § 506(b), Town Law must prevail because Town Law § 66 expressly and specifically provides for proper venue in an action or proceeding against a town or its officers whereas CPLR § 506(b) provides for venue in a proceeding against a body or officer' and does not specifically provide for venue in an action against a town'. If there is a perceived conflict, the Town Law's mandate must control and supersede the CPLR's broader provision, especially in light of the fact that the Town of Brookhaven is the only municipality named as a respondent herein (Affirmation in Support at ¶13 [Motion Seq No 2]).

The Town also argues that venue is proper in Suffolk County as all the material events took place in Suffolk County.

In contrast, Northeast maintains that Nassau County is the proper venue for two reasons. First, because the instant proceeding involves the same issues of law and fact as those in The Hamlett at Willow Creek Development co., LLC v Northeast Land Development Corp., et al., "both matters should be consolidated and tried once before this court" (Affirmation in [*6]Opposition at ¶ 28 [Motion Seq No 2]).[FN8] Northeast further argues that CPLR 506(b) is in direct conflict with Town Law § 66 and because the CPLR was enacted after Town Law § 66, "the Legislature intended CPLR § 506(b) to supersede and implicitly repeal Town Law § 66, [t]hus CPLR 506(b) controls" (Affirmation in Opposition at ¶ 35 [Motion Seq No 2]).

Relevant Venue Provisions

An article 78 proceeding is a special proceeding which "shall be brought in the supreme court in the county specified in subdivision (b) of section 506 except as that subdivision otherwise provides".

CPLR 506(b) provides, in relevant part:

(a) Generally. Unless otherwise prescribed in subdivision (b) or in the law authorizing the proceeding, a special proceeding may be commenced in any county within the judicial district where the proceeding is triable.

(b) Proceeding against body or officer. A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located.

Notwithstanding CPLR 506(b)'s mandatory language that a special proceeding "shall" be commenced in any county within the judicial district, the court notes that CPLR Article 78 proceedings preferably should be heard and determined in the county in the judicial district in which the matter sought to be reviewed originated, or where the material events occurred (see Matter of Lefkowitz v Beame, 52 AD2d 925 [2d Dept 1976]).

Town Law § 66 provides that the "place of trial of all actions and proceedings against a town or any of its officers or boards shall be the county in which the town is situated." Like CPLR 506(b), Town Law § 66 also uses the mandatory directive of "shall" and sets forth that all proceedings against a town "shall" be in the county where the town is situated.

Contrary to Northeast's contention, CPLR 506(b) and Town Law § 66 are not directly in [*7]conflict and, as such, the instant action is properly venued in Suffolk County rather than Nassau County. Several rules of statutory construction guide this determination. First, in the absence of an irreconcilable conflict, statutory provisions are to be read together, since the Legislature is presumed to create laws in harmony with those in existence at the time of the new enactment (McKinney's Cons. Laws of NY, Book 1, Statutes § 391). Conversely, where two statutes cannot be harmonized the subsequent provision prevails over the pre-existing and irreconcilably conflicting provision (McKinney's Cons. Laws of NY, Book 1, Statutes § 398), and a prior general statute ordinarily must yield to a later specific or special statute (Dandomar Co., LLC v Town of Pleasant Valley Town Bd., 86 AD3d 83, 92 [2d Dept 2011]).

Significantly, CPLR 506(b) applies generally to "officers" and "bodies", whereas Town Law § 66 refers specifically to "towns", town "officers" and town "boards". Accordingly, there is no facial conflict between the two statutes and the function of the court is not to manufacture conflict where none exists. Moreover, as noted, the more specific statute - in this instance - the Town Law, will prevail over the general. Finally, there is no merit to Northeast's contention that because CPLR 506(b) was adopted subsequent to Town Law § 66 that the Legislature intended to supplant and render the other meaningless. In fact, a review of the legislative history of the statutes reveals that CPLR 506(b) was preceded by section 1287 of the Civil Practice Act which contains substantially similar language.[FN9]

Accordingly, because Town Law § 66 is more specific than CPLR 506(b), it specifically requires venue of the instant proceeding to be in Suffolk County, the county in which the Town of Brookhaven is located. In this regard, a change of venue to Suffolk County would still comply with the broader requirement of CPLR 506(b), which merely provides a choice between Nassau or Suffolk counties.

Conclusion

Based on the foregoing, it is hereby

Ordered that the motion of the Town Respondents (Motion Seq No 2) for an order, inter alia, pursuant to CPLR 510 and 511 to change venue of the instant Article 78 proceeding from Nassau County to Suffolk County is granted and the proceeding is transferred in its entirety to the Supreme Court, Suffolk County; and it is further

Ordered that Motion Sequence numbers 1, 3 and 4 are referred to the Suffolk County judge who is assigned to this matter after the transfer; and it is further [*8]

Ordered that the above captioned proceeding is stayed pending further court order; and it is further

Ordered that the Town Respondents are directed to serve a copy of this order upon the Clerk of the Nassau County Supreme Court within 20 days. Upon service of a copy of this order on the Clerk of the Nassau County Supreme Court, and upon the payment of any requisite fees, the Clerk of the Nassau County Supreme Court shall transfer the file, including all motions that have been filed in Nassau County, to the Clerk of the Suffolk County Supreme Court. Upon the transfer of this action to Suffolk County and the assignment of a Suffolk County index number, the parties may re-file their motion papers in the Supreme Court of Suffolk County.

This constitutes the decision and order of the court.

Dated: January 2, 2103

_____________________________

Hon. Vito M. DeStefano, J.S.C.

. Footnotes

Footnote 1: Pav-Co Asphalt, Inc. ("Pav-Co"), was hired by Northeast as its excavation subcontractor. Fidelity and Deposit Company of Maryland ("Fidelity") issued a performance bond guaranteeing performance of the excavation work in accordance with the approved site plan, naming Northeast and Pav-Co as principals under the bond, and the Town of Brookhaven as obligee.

Footnote 2: The Petitioners in the Suffolk County Article 78 proceeding was the Hamlett at Willow Creek Development Co. LLC and the Holiday Organization LLC.

Footnote 3: The Hamlet paid $740,000 in environmental fees for the approved and authorized excavation amount and an additional $300,000 was paid to the Town, in escrow, pending the final determination of the over excavation amount (Affirmation in Support of Cross Motion at ¶ 17).

Footnote 4: According to Town Code §§ 53-3[H][3], prior to excavation, an estimate is submitted to the Town and once the construction is complete, the Commissioner makes an actual determination.

Footnote 5: The Hamlet at Willow Creek v Northeast Land Development Corp., et al, Index No. 7536-05 (Supreme Court, Nassau County).

Footnote 6: Respondents The Hamlet at Willow Creek Development Co., LLC, Mt. Sinai Associates, LLC and The Holiday Organization cross-moved for an order, inter alia, pursuant to CPLR 7804(f) and CPLR 3212 dismissing the Petition in its entirety. In a separate motion, the Town Respondents also move for an order pursuant to CPLR 3211(a)(5), (7), and 7804(f) dismissing the Petition on the grounds that: the Petition is time-barred by a four-month statute of limitations; Northeast has failed to establish a basis for the remedy of mandamus; and if mandamus were an appropriate remedy, that there has already been a "final determination", rendering the relief sought herein moot.

Footnote 7:CPLR 510 provides that the court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or

3. the convenience of material witnesses and the ends of justice will be promoted by the change.

Footnote 8: The court notes that a true consolidation of the pending action with the instant proceeding would be inappropriate as it would result in Northeast being a Petitioner and Defendant in the same action (see M & K Computer Corp. v MBS Industries, 271 AD2d 660 [2d Dept 2000]). The court also notes that Northeast's reliance on Matter of Knight v New York State Dept. of Environmental Conservation (110 Misc 2d 196 [Sup Ct Monroe County July 31, 1981]) and Riccelli Enterprises, Inc. v State (2012 WL 1802558 [Sup Ct New York County April 30, 2012]) are inapposite as the venue issues in those cases did not implicate Town Law § 66.

Footnote 9: CPLR 506(b) "was derived from Civil Practice Act section 1287 without change of substance except that the venue for proceedings against the bodies and officers enumerated in the second numbered paragraph was changed from the third judicial district" to Albany county'" (3506 New York Civil Practice: CPLR 506App.03).